ON AFRICAN CONSTRUCTION RULING

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT (MUSOMA SUB REGISTRY AT MUSOMA) CIVIL CASE No. 2 OF 2023 ON AFRICA CONSTRUCTION LIMITED.............................. PLAINTFIFF Versus CATA MINING COMPANY LIMITED.................................... DEFENDANT RULING 25.10.2023 & 01.12.2023 Mtulya, J.: On the 6th September 2022, this court located at Kigoma had resolved Land Appeal No. 8 of 2021 (the appeal) between Mr. Ibrahimu Pius Kagansha & Another (the appellant) and Mr. Bera Karumba & Another (the respondents). In its Ruling, the court had produced two (2) texts, which are the center of the instant contest in this case between Mr. Alfred Mtawa, learned counsel for the plaintiff and Ms. Mary Joakimu, learned counsel for the defendant. The two (2) texts were produced at distinct typed pages of the Ruling of the court, namely page 9 and 10. The writings were put in the Ruling to clarify the application of Rule 4 (1) (a) & (b) of the Interpretation of Laws (Use of English Language in Courts) (Circumstances and Conditions) Rules, 2022 GN. No. 66 of 2022 (the Rules). The provision in Rule 4 (1) (a) & (b) of the Rules, in brief shows that: any party who intends to initiate proceedings in English language shall file his pleadings in English language with their i corresponding translation in Kiswahili language. Regarding the dual texts in the Ruling, the first statement is displayed at page 9, which was preferred by Ms. Joakimu, and shows in brief that: ...where pleadings are filed in English language, there must be a corresponding Kiswahili transaction.... there must be two copies, one in English and another in Kiswahili. Whereas at page 10 of the Ruling, which was preferred by Mr. Mtawa shows that: There is no mandatory requirement to use Kiswahili in courts. The law and the Rules are flexible. They are designed to take us to the use of Kiswahili in court. A lot has to be done for the statutes, books and law reports are still in English. Efforts are made to translate them but we are not there yet. We are not breaching the law, but we are actually applying it. In the present case, the plaintiff had filed her plaint in English language without any corresponding version of Kiswahili language. Similarly, the defendant had registered the Written Statement of Defence (WSD) in English without corresponding Kiswahili version, but had registered a point of law protesting the case for want of Kiswahili version of the plaint. The point was scheduled for hearing on 25th October 2023. During hearing of the point, Ms. Joakimu for the respondent submitted that the plaintiff had declined the requirement of Rule 4 (1) (a) & (b) of the Rules, which require any party who initiates 2 proceedings in English language to file a corresponding translation of Kiswahili language. In the opinion of Ms. Joakimu, the plaintiff had breached the law hence the plaint be struck out for want of Rule 4 (1) (a) & (b) of the Rules. In support of her move, Ms. Joakimu had cited the precedent of this court in Ibrahimu Pius Kagansha & Another v. Bera Karumba & Another, Land Appeal No. 8 of 2021 and indicated paragraph at page 9 of the Ruling. In replying the submission, Mr. Mtawa contended that the point was registered to delay justice contrary to the provision of section 3A of the Civil Procedure Code [Cap. 33 R.E. 2019] (the Code). According to Mr. Mtawa the plaintiff's case falls in exceptions provided in item (g) and (i) of the Schedule to the Rules and that the plaint is within Rule 3 of the Rules and section 84A (2) of the of the Interpretation of Laws Act [Cap 1. R.E. 2019] (the Act). According to Mr. Mtawa, the Judiciary in Tanzania is not fully equipped with the use of Kiswahili language as indicated in the precedent of Ibrahimu Pius Kagansha & Another v. Bera Karumba & Another (supra) and in any case the precedent shows that that there is no mandatory use of Kiswahili language in court. In bolstering his arguments, Mr. Mtawa cited page 10 of the Ruling and finally, submitted that: the present parties are in dispute on a contract which was drafted in English language; the parties signed 3 the contract in English language without any protest; the parties use English language in communications and no complaints were produced; the parties are international reputable mining companies; the parties have lodged their pleadings in English language; and enjoy legal representation of learned minds. In the opinion of Mr. Mtawa, there would be no any prejudice to any party if English language is invited and used in the proceedings of the case, and if Kiswahili version is so necessary to be filed, this court may order the plaintiff to do so for interest of substantive justice. In her brief rejoinder, Ms. Joakimu insisted on her previous submission and stated that she has already cited the law supported by precedent of this court in Ibrahimu Pius Kagansha & Another v. Bera Karumba & Another (supra) and it's the duty of this court to interpret the registered protest of the respondent. I have considered the submissions of the learned minds and perused the cited precedent in Ibrahimu Pius Kagansha & Another v. Bera Karumba & Another (supra). The enactment of Rule 4 (1) (a) & (b) of the Rules displays that any party who intends to initiate proceedings in English language shall file his pleadings in English language with their corresponding translation in Kiswahili language. The enactment was followed by several exceptions in the schedule to the Rules, and item (g) and (i) of the 4 schedule accommodate pleadings proceedings where: first, the law governing the matter subject of litigation, and the practice and procedure are not available in Kiswahili language; and second, the interest of justice demands so. In the instant protest, Ms. Joakimu was silent on the application of item (g) and (i) of the Rules. She also remained quiet on materials registered by Mr. Mtawa on historical background of the dispute which shows the use of English language in transactions between the parties. This court, in brief is asked to reply an issue whether a contest on species of languages used in pleadings of two reputable companies doing business in English language can prejudice one of them. In other words, whether rights and duties of the parties, who are conversant in English language, can be prejudiced in absence of Kiswahili version in pleadings. Reading the provision of the Interpretation of Laws Act [Cap 1. R.E. 2019] (the Act) and the Rules as a whole, it is obvious that: there is no mandatory requirement to use Kiswahili language in courts. The law and Rules are flexible. They are designed to take us to the use of Kiswahili language in courts. A lot has to be done for the statutes, books and law reports are still in English. Efforts are made to translate them, but we are not there yet. This thinking of the court is in line with the provision of item (g) and (i) of the Rules trying to accommodate the transitional or 5 grace period in a move towards full use of Kiswahili language in our courts. It is plain that we have not arrived at our intended destination. As I indicated earlier, Ms. Joakimu was silent on whether the laws and practice regulating the present dispute are in Kiswahili language. Similarly, she was silent on whether interest of justice does not demand use of English language where parties communicate in English language. In my opinion, I think, there is paradigm shift in our courts which yet to be appreciated by learned counsels and parties in disputes lodged in our courts. The current thinking of this court is that any complaint lodged in this court resisting the mandate of this court must also display how the complainant is prejudicial or else how substantive justice will be jeopardized on her part. Ms. Mary had declined to show how the respondent will be prejudiced by the English language or how the substantive justice will be endangered. This court decides matters depending on the circumstances of each peculiar case. The instant case is peculiar in the sense that both parties were in favor of English in their dispute, but one of them is asking a Kiswahili version of the pleadings. She cited the laws in enactment and precedent which are certain on the use of English and Kiswahili languages. It is also uncertain on what exactly the respondent wants to achieve in her protest. Mr. Mtawa 6 thought that the respondent is delaying this case. In absence of any other materials, this court may agree with Mr. Mtawa. This case has been in this court since January 2023 without any progress, which is not only against enactment of section 3A (1) of the Code, but also breaches the directive of the Court of Appeal in the precedent of Yakobo Magoiga Gichele v. Peninah Yusuph, Civil Appeal No. 55 of 2017 and this court in the case of Chenge Magwega Chenge v. Specioza Machubi, Land Appeal No. 13 of 2023. This court is required by the enactment of sections 3A (2) and 3B (1) of the Code to: facilitate just, expeditious and proportionate civil disputes in order to give effect to the principle of overriding objective and decline simple legal technicalities. In any case, there is already in place a barrage of precedents of this court which had resolved that there is no mandatory requirement to the use of KiswahiHlanguage in our courts (see: Ibrahimu Pius Kagansha & Another v. Bera Karumba & Another (supra); Zaid Jumanne Zaid v. Pili Rajabu Abdallah, Land Appeal Case No. 9 of 2022; Kanwagale Vedastus Mkama v. Josephina January (PC) Civil Appeal No. 39 of 2022; and Ginai Bangiri v. Kisibiri Warioba & Another, Land Appeal No. 63 of 2022). Regarding the proper application of Rule 4(1) (a) & (b) of the Rules, this court on 17th March 2023, in the precedent of Julius 7 Kweba & Two Others v. The Registered Trustees of Seventh Day Adventist Church, Land Appeal No. 76 of 2022, took its time off schedule to explain the contents of the Rule and at page 7 of the Ruling had resolved that: the rule does not state in all circumstance pleadings must be filed in English with a translated version of KiswahiH language. It is unfortunate that despite all efforts of this court to put the matter clear in favor of substantive justice, learned minds and parties are still asking this court to resolve the same issue now and then. This court is more concerned with substance of matters and justice to the parties. Disputants are approaching this court for substantive justice and must let this court to do just that. Simple technicalities to avoid substance of matters cannot be encouraged in this court. Considering the circumstances of the present case, nature of the parties, and invitation of learned minds, I see no any reason why the defendant is asking for KiswahiH language version of pleadings, whereas herself has registered English language version of pleadings. As I indicated earlier, she is also silent on how she will be prejudiced or substantive justice on her part will be endangered. In my considered view, the protest registered by Ms. Joakimu is just a mockery in reducing the mandate of this court into 8 resolving trivial complaints of languages, instead of substantive issues. This is a busy court searching for substantive justice to the parties. This court has already stated that there is no mandatory requirement to use Kiswahili in courts. The law and the Rules are flexible. In that case, we are not breaching the law, but we are actually applying it. Having said so, I overrule the registered point of law resisting the instant case for want of Kiswahili language version of the pleadings. I do so without costs owing to the nature and circumstances of the objection. Each party shall bear its costs. This Ruling was delivered in Chambers under the Seal of this court in the presence of the plaintiff's learned counsel, Mr. Alfred Mtawa, and in the presence of the defendant's learned counsel, Ms. Mary Joakimu. Judge 01.12.2023 9